Central Bank Review of Unfair Contracts

[Raging Bull]

CB has released statement regarding review.

Firstly, I am glad they did something about. I actually made a written complaint to them about it 3 years ago in relation to a widespread practice not in mortgage contracts saying you can't rely on a banks valuation of property for a mortgage..which is clearly an unfair term hence illegal

However its unclear if Mortgages are in scope as their statement and reports neglect to say what the breaches were in relation to CPC and general retail banking,

It also begs the obvious question why didn't they name those not compliant

 

[Fin Crusader]

Raging Bull,

Nobody seems to be mentioning the elephant in the room, that been the unfair term in schedule 3(p) in S.I. 27/1995. Schedule 3 of S.I. 27/1995 gives a list of various unfair terms that a court may interpret as being unfair, this is an indicative but non exhaustive list. Term schedule 3(p) states

" Giving the seller or supplier the possibility of transferring his rights or obligations under the contract where this may serve to reduce the guarantees for the consumer, without the laters agreement."

Consumers would do well to look at this schedule especially in light of recent sales of loan books to vulture funds. I know the Government is planning legislation in the new year to plug this dreadful reduction in consumer protection. If a consumers mortgage loan was sold to one of the early arrival vulture funds and they have changed interest rates or instigated legal proceedings for possession, a High court Judge may well be entitled to the view that the actual transfer of the loan was an unfair term, thus unbinding the consumer from the contract with the new owner of the loan.

Financial Crusader

 

[Gerry Canning]

Raging Bull,

Nobody seems to be mentioning the elephant in the room, that been the unfair term in schedule 3(p) in S.I. 27/1995. Schedule 3 of S.I. 27/1995 gives a list of various unfair terms that a court may interpret as being unfair, this is an indicative but non exhaustive list. Term schedule 3(p) states

" Giving the seller or supplier the possibility of transferring his rights or obligations under the contract where this may serve to reduce the guarantees for the consumer, without the laters agreement."

Consumers would do well to look at this schedule especially in light of recent sales of loan books to vulture funds. I know the Government is planning legislation in the new year to plug this dreadful reduction in consumer protection. If a consumers mortgage loan was sold to one of the early arrival vulture funds and they have changed interest rates or instigated legal proceedings for possession, a High court Judge may well be entitled to the view that the actual transfer of the loan was an unfair term, thus unbinding the consumer from the contract with the new owner of the loan.

Financial Crusader

...........
The problem is in (the Court may interpret as unfair).
In Ireland under what I have seen of FSO,Central Bank and Courts there is very little appetite to use other than strict Law of Contract , in laymans terms , you signed Document so tough !
I would be very interested to hear of exceptions when our (vaunted) Regulators use what you quote and /or an equity clause.

 

[Raging Bull]

The purely legal interpretation is any term in a contract is unfair if it seeks to limit liability, so with respect to banks property valuations which usually state you cant rely on them are in essesnce unfair being that they are not to be relied upon. The irish law is derived from EU directives so the system would not be able to protect the banks.

See case Smith v Eric Bush

This has been challenged multiple times in UK under EU law with valuers and Banks being sucessfully sued for negligence

 

[Fin Crusader]

The European court of Justice clarified matters in relation to unfair contracts in January 2014 see case c-226/12. This ruling was in favour of the consumer. The ECJ left if to the National courts to decide whether, based on the guidance set out by the ECJ for determining the unfairness of a term, a particular contractual term is actually unfair in the circumstances of the case. Having said that, if a National court decides against the consumer on an issue that the ECJ has given specific guidance, the consumer can appeal it to the ECJ for a ruling. No National court wants their decision to be overruled by the ECJ. European law trumps even constitutional law never mind contract law.